State v. Smith

• Decision Date: 30 January 2013
• Docket Number: No. 2011–KA–0664.,2011–KA–0664.
• Citation: 108 So.3d 376
• Parties: STATE of Louisiana v. Timothy D. SMITH.
• Court: Court of Appeal of Louisiana — District of US

108 So.3d 376

STATE of Louisiana

v.Timothy D. SMITH.

No. 2011–KA–0664.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 30, 2013.

Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for the State of Louisiana.

Karla M. Baker, Baker Law Firm, L.L.C., Metairie, LA, Anna L. Friedberg, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).

PAUL A. BONIN, Judge.

[4 Cir. 1]A less-than-unanimous jury found Timothy Smith guilty of the attempted manslaughter of Quinn Bourgeois. SeeLa. R.S. 14:27, 14:31. Attempted manslaughter is a verdict responsive to the charged offense of attempted second degree murder. SeeLa. C.Cr.P. art. 814 A(4); see alsoLa. R.S. 14:30.1. The district court sentenced Mr. Smith to seventeen years imprisonment at hard labor ¹ and denied Mr. Smith's motion to reconsider the sentence. SeeLa.C.Cr.P. art. 881.1.

Mr. Smith appeals his conviction and sentence. SeeLa.C.Cr.P. art. 912 C(1); La.C.Cr.P. art. 881.2 A. He assigns several errors. He argues that the evidence is insufficient to support a guilty verdict under the well-known Jackson v. Virginia standard. Related to that argument are the assignments that the State failed to disprove self-defense and that the evidence supports a guilty verdict only [4 Cir. 2]for the offense of aggravated battery,² another verdict responsive to the offense of attempted second degree murder.

Mr. Smith further argues that he was entitled to a mistrial as a result of several rulings by the trial judge. The first of these rulings is that the trial judge did not permit him to exercise his peremptory challenges through a back-striking procedure. The next rulings challenged relate to statements made during the trial testimony of police witnesses that referenced other crimes Mr. Smith committed, and the prosecutor's remark during his cross-examination that Mr. Smith had “lawyered-up.” Mr. Smith argues that the trial judge erred in failing to grant him a new trial “in the interests of justice.”

Mr. Smith also argues that the sentence imposed is excessive. In addition to these assigned errors, seeLa.C.Cr.P. art. 920(1), he specifically requests that we conduct an error patent review, which we do irrespective of such a request from a defendant. SeeLa.C.Cr.P. art. 920(2).

After a Jackson v. Virginia review, we reject Mr. Smith's argument that the prosecution failed to present to the jury sufficient evidence to prove beyond a reasonable doubt all the essential elements of the crime of attempted manslaughter and, consequently, reject his argument that the jury could convict him of only aggravated battery on this evidence. We address these findings in Part I, post. With respect to his motion for new trial based on back-striking complaints, we conclude that Mr. Smith failed to properly preserve this alleged error for our [4 Cir. 3]review and more fully explain our holding in Part II, post. In Part III, post, we address our review of the trial court's rulings on the various motions for mistrial and conclude that in each instance there is no reversible error. Finally, in Part IV, post, we address why we find that the sentence imposed by the district judge was within her discretion and did not exceed the constitutional limit for the sentence of this offender for this offense.

We, thus, affirm both the conviction and sentence.³

I

In this Part we first address the constitutional standard of review for claims of insufficiency of evidence and then turn to consider the evidence presented to the jury as the fact-finder. Finally, we explain why we find from the record that there was sufficient evidence to prove beyond a reasonable doubt every element of the offense of manslaughter and, in this case, that Mr. Smith's killing of Mr. Bourgeois was not justified.

A ⁴

The standard of review for sufficiency of evidence applicable to criminal convictions in state courts is set out in Jackson v. Virginia, 443 U.S. 307, 318–319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence [4 Cir. 4]could reasonably support a finding of guilt beyond a reasonable doubt.” Id. “But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Id. quoting Woodby v. INS, 385 U.S. 276, 282, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966) (emphasis added by Jackson ). “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (bold emphasis in original); see also Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), (stating: “Jury verdicts finding guilty beyond a reasonable doubt are regularly sustained even though the evidence was such that the jury would have been justified in having a reasonable doubt.”).

In discharging our review function, we consider “ all of the evidence ” before the actual fact-finder. Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original). The United States Supreme Court has explained that the standard of review for sufficiency of evidence is highly deferential to the fact-finder because it “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id. “The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” Id.

Similarly, “[a] reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review.” State v. Macon, 2006–0481, p. 8 (La.6/1/07), 957 So.2d 1280, 1285–1286. “It is [4 Cir. 5]not the function of an appellate court to assess credibility or re-weigh the evidence.” Id. The Due Process Clause of the Fourteenth Amendment, the source of the Jackson standard, does not countenance, much less require, that we re-weigh testimony and witness credibility. And “[i]n criminal cases [a court of appeal's] appellate jurisdiction extends only to questions of law.” La. Const. art. V, § 10(B). See also State v. Barthelemy, 09–0391, p. 24 (La.App. 4 Cir. 2/24/10), 32 So.3d 999, 1015.

Therefore, in discharging our review function for sufficiency of evidence, we cannot re-weigh or re-consider reasonable inferences drawn from basic facts to ultimate facts. We must confine ourselves to questions of law except to the extent, and only to the extent, that Jackson mandates otherwise. See State v. Gilmore, 10–0059, p. 5 (La.App. 4 Cir. 10/6/10), 50 So.3d 208, 212.

B

The crime of manslaughter is “a homicide which would be murder ... under Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La. R.S. 14:31 A(1).⁵Second-degree murder is defined as “the killing of a human being ... when the offender has the specific intent to kill or to inflict great bodily harm.” [4 Cir. 6]La. R.S. 14:30.1 A(1). “Sudden passion” and “heat of blood” are not elements of the offense of manslaughter; they are merely mitigating factors lessening the culpability of a defendant. See State v. Lombard, 486 So.2d 106, 110 (La.1986). Therefore, because provocation is not an element of manslaughter, in our review function in this case, we need not consider whether there is any evidence of Mr. Smith's provocation and need only focus on whether there was an intentional killing. See Moore, supra, 11–0025, p. 7, 75 So.3d at 26–27.

An attempt to commit any crime is a specific intent crime. SeeLa. R.S. 14:27 A. “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Accident is, of course, the anti-thesis of specific intent. A finding that a shooting was accidental would preclude a finding of the essential element of specific intent. See State v. Matthews, 380 So.2d 43, 45 (La.1980).

C

We turn now to a consideration of the record facts.

The jury had no less than three principal sources of information about the circumstances of the shooting of Mr. Bourgeois: the testimony of Mr. Bourgeois himself; the statements by Tonic Smith, the estranged wife of the defendant and the girlfriend of Mr. Bourgeois, that she made to the 911 operator and to police investigators; and the testimony of Mr. Smith. All three admit to being the only [4 Cir. 7]ones present at the shooting. With respect to each principal source, there was evidence from other sources which corroborates and contradicts each.

Before reviewing the conflicting versions—and they are conflicting—of the three principal sources, we summarize some basically undisputed background facts important to understanding and evaluating the different versions. Mr. and Mrs. Smith, although married, had been estranged for some time before the shooting of Mr. Bourgeois. Mr. Smith was residing in Atlanta. Mrs. Smith was residing with their son in an apartment in New Orleans East. Mr. Bourgeois and Mrs. Smith were romantically involved, and, although not co-habiting, they often stayed overnight at each other's homes.

On Christmas Day of 2008, Mr. Smith had returned to New Orleans and spent the day with his family. Mrs. Smith and Mr. Bourgeois spent Christmas Day with Mr. Bourgeois' family. During the day and through the evening, Mrs. Smith called Mr. Smith and...